Ottawa's environmental-review overhaul hits tough hurdles

OTTAWA — The Globe and Mail

First Nations members protest outside the Enbridge Inc. annual shareholders' meeting in Toronto May 9. (MIKE CASSESE/MIKE CASSESE/REUTERS)

The federal government’s insistence that cabinet should have final say over resource projects such as Enbridge Inc.’s Northern Gateway pipeline is stirring opposition that could undermine its effort to streamline environmental approvals.

First nations groups in British Columbia are poised to launch legal challenges if the government intervenes in the ongoing National Energy Board review of the Gateway project through legislation now before the House of Commons.

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And critics say the Conservative government is politicizing the entire review process by giving cabinet the power to overturn any future NEB ruling that blocks a resource development on environmental grounds.

The overhaul could in fact create more challenges for companies looking for certainty in the environmental review process as opponents seek redress from the courts or turn to civil disobedience, said Judy Tanguay, a former director-general for oil and gas at the Indian Affairs and Northern Development.

“It’s important that at the end of it – whether you agree with the decision or not – you feel it has been a legitimate process with an impartial hearing of your views and concerns,” Ms. Tanguay said.

She added that the government has tainted the review of the proposed Gateway pipeline, which would carry 500,000 barrels per day of oil sands bitumen to Kitimat, B.C., to be exported by supertanker to Asia.

“The whole process has been delegitimized. We know what the decision will be; [Prime Minister Stephen]Harper has made it clear that he desperately wants this project to proceed.”

The retired bureaucrat – who worked on the lengthy Mackenzie Gas Project – has written letters to federal Natural Resources Minister Joe Oliver, Alberta Premier Alison Redford and industry associations, condemning the loss of independence for the National Energy Board, while acknowledging the need to streamline an often cumbersome process.

She noted that the NEB bases its decisions on a court-like hearing process in which all parties put their arguments on the public record, while the panel is forbidden from meeting privately with either project proponents or opponents.

“Decisions made by the board are therefore precisely the kind of decisions that should not be left to ‘elected officials,’ especially given this government’s promotion of oil sands development at any cost,” she said in the letter to Mr. Oliver.

The Natural Resources Minister argues that providing cabinet final authority over assessments yields more accountability, and is in keeping with the existing process under the Canadian Environmental Assessment Act. The government already has the power to reject a project that has been approved by the NEB.

“We believe that elected officials should make decision based on the national interest, not unelected bureaucrats,” Mr. Oliver said in an e-mailed statement. “Elected officials are the ones accountable to Canadians, and this legislation will ensure that Canadians clearly know who made a decision and why they made that decision.

Brenda Kenny, president of the Canadian Energy Pipelines Association, said the NEB will retain its authority to hold hearings, consult with first nations and impose conditions on pipeline permits. But she said it makes sense for the government to exercise the final authority in the public interest.

Several first nations groups are complaining that the federal government’s actions are short-changing their constitutional right to be consulted and accommodated on all projects impacting their traditional lands.

And they are ready to take their concerns to court, especially if the government carries through on its stated intention to impose new rules on the Gateway pipeline review, including the potential for cabinet to overturn any possible NEB rejection.

“They would get challenged very quickly if they tried to shorten up the Northern Gateway panel,” said Art Sterritt, executive director of Coastal First Nations, an umbrella group representing Indian communities on the B.C. coast.

He said aboriginal communities are already skeptical about the independence of the review panel, and the current legislation merely confirms their suspicions. The bill, part of the omnibus budget legislation, is being studied by a Commons committee and is expected to pass by summer.

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